State v. Coats

• Decision Date: 11 January 1938
• Citation: 74 P.2d 1102,158 Or. 122
• Parties: STATE v. COATS.
• Court: Oregon Supreme Court

74 P.2d 1102

158 Or. 122

STATE v. COATS.

Supreme Court of Oregon

January 11, 1938

In banc.

Appeal from Circuit Court, Polk County; Arlie G. Walker, Judge.

C. C Coats was charged by information with promoting and setting up a lottery by means of a device commonly known as a pin ball game. From a decree sustaining a general demurrer to the information, the State appeals.

Reversed and remanded.

Bruce Spaulding, Dist. Atty., of Dallas, and Ralph E. Moody, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for the State.

Walter L. Tooze, of Portland, and George R. Bagley, of Hillsboro (John Steelhammer, of Salem, on the brief), for respondent.

BELT Justice.

The defendant, Coats, is charged with the crime of promoting and setting up a lottery in Polk county by means of a certain device commonly known as a pin ball game.

In the information filed by the district attorney it is alleged as follows:

"That said C. C. Coats, on the 23d day of August, 1937, in said county of Polk, State of Oregon, then and there being, did then and there wrongfully, unlawfully and feloniously promote and set up a certain lottery for money by then and there promoting, setting up and operating a certain device commonly known as a pin-ball game for money, which pin-ball game involved an element of skill, but in the playing of which the element of chance predominated, and which pin-ball game and the manner and method of its play is particularly described as follows: The cabinet of said pin-ball game had and has a flat horizontal top in the shape of a table approximately 18 1/2 inches wide and 42 inches long and is mounted on four legs, with one end of the table a little lower than the other. The table legs are capable of being adjusted so as to alter, to some extent the elevation or incline of the playing surface of the table. A game is played upon said table with a marble or metal ball. The playing surface on the top of the table which top is protected by a glass cover, has a number of holes numbered from 1 to 16 inclusive, and into which the marble or metal ball used in playing the game may lodge. Springs and resilient pins are driven into the surface of the playing board at various places and particularly upon the upper side of each of said holes. Beneath the playing surface of said board was and is a receptacle for holding a marble or metal ball and a device for the purpose of raising said marble or metal ball from said receptacle and placing the same in front of a plunger located within and upon said game on the lower righthand corner thereof and which said plunger was and is adapted, designed and devised so that when pulled back and released it will strike said marble or metal ball and force the same along a channel on the righthand side of said board toward the upper or higher end of said board and onto the playing surface of said game. At the upper end of said game and extending upward at right angles to the playing surface was and is a cabinet showing numbers from 1 to 16 inclusive and which numbers correspond to the numbered holes upon the playing surface of said board; and in said cabinet at the upper end of said board there is an electrically controlled revolving drum containing a series of numbers from 2 to 30, and which numbers determine the number of nickels or 5 cent coins of the United States of America given as an award upon the successful playing of said game, these awards for successful playing of such game changing with each play thereof. In addition to the holes on the playing surface of said board numbered from 1 to 16 inclusive, there are three other holes on said board described as follows: One hole in approximately the center of the playing surface of said board is marked 'Left at Post'; another hole directly below the hole marked 'Left at Post' is marked 'Daily Double', and the third hole at the bottom of the playing surface of said board is marked 'Parlay Purse', and at the extreme lower end of said playing surface of said board is a receptacle to receive said marble or metal ball in the event the same fails to drop in one of the holes on the playing surface of said board. Said game is named by the manufacturer thereof as 'Pamco Parlay'. In playing said game the player thereof is required to deposit a nickel in money in a slot or chute located on the lower lefthand corner of said game, and said player places said game in play by pushing said coin chute forward containing said nickel as aforesaid, and which operation drops said marble or metal ball into said receptacle under the playing surface of said board and enables the player, by the use of a lever on the lower righthand corner of said game, to raise said marble or metal ball to said channel on the right side of said game, and in front of said plunger as aforesaid. The player then propels the marble or metal ball onto said playing board by the use of said plunger as aforesaid, attempting in the use of such plunger and the degree of force applied thereby to cause the marble or metal ball when shot forward onto the playing surface of said board to drop in one of said holes numbered or named as aforesaid, and particularly to avoid said marble or metal ball dropping in said hole marked 'Left at Post' as described. If said marble or metal ball drops in one of said holes numbered as aforesaid, then the player thereof receives as his award therefor the number of nickels indicated on said electrically controlled drum opposite the number on said cabinet corresponding to the numbered hole on the playing surface of said board into which said marble or metal ball has dropped. In the event the marble or metal ball drops in said hole marked 'Daily Double' the player receives an award of ten nickels or 50¢ in money; and in the event said marble or metal ball drops in the hole marked 'Parlay Purse' the player receives an award of ten nickels or 50¢ in money. The holes marked 'Daily Double' and 'Parlay Purse' are not indicated upon said cabinet at the upper end of said board, and the odds do not change as to these holes, the award for the marble or metal ball dropping in each of said holes being the same in all cases. In the event the marble or metal ball drops in the hole marked 'Left at Post' the player receives no award and loses the game, and in the event the marble or metal ball fails to drop in any other hole on the playing surface of said game the player receives no award and loses the game. In the playing of said game the player is permitted to play but one shot with one ball for the five cents paid by him as consideration for the playing of said game, and only one player can play said game at a time. In the event the player causes said marble or metal ball to drop in any of said numbered holes, or in said two specifically named holes as aforesaid, the award which the player receives is paid in nickel coins of the United States of America, and said coins are caused to be automatically delivered to the player in a coin-delivery box at the lower end and bottom of said game. In the playing of said game the speed, course and direction of said marble or metal ball, and the hole on the playing surface of the board into which said marble or metal ball may drop, if any, is controlled to a certain degree by the skill of the player, but is determined principally by chance, and in the playing of said game the element of chance predominates over the element of skill, and the operation of said game constituted and does constitute the promoting and setting up of a lottery for money, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon."

From an order sustaining a general demurrer to the information, the State appeals.

The vital question is whether the setting up and operation of the pin ball machine particularly described in the information constitutes conducting a lottery within the meaning of the term as defined by this court.

Section 4 of article 15 of the Constitution of Oregon provides as follows: "Lotteries, and the sale of lottery tickets, for any purpose whatever, are prohibited, and the legislative assembly shall prevent the same by penal laws."

Section 14-801, Oregon Code 1930, in reference to setting up or promoting lotteries, provides: "If any person shall promote or set up any lottery for money or other valuable thing, or shall dispose of any property of value, real or personal, by way or means of lottery, or shall aid or be in any way concerned in setting up, managing, or drawing such lottery, or shall, in any house, shop, boat, shed, or building owned or occupied by him or under his control, knowingly permit, or suffer the setting up, management, or drawing of any such lottery, or the sale of any lottery tickets, share of a ticket, or any writing, token, or other device purporting or intended to entitle the holder or bearer thereof, or any other person, to any prize or interest or share thereof, to be drawn in any lottery, such person, upon conviction thereof shall be punished by imprisonment in the penitentiary not less than six months nor more than one year, or by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than $100 nor more than $1,000."

The State contends that the operation of this mechanical device involves all the elements of a lottery, and that any statute or ordinance purporting to authorize the licensing of the same is in violation of the Constitution, and hence of no force or effect.

The defendant contends that, since the pin ball game, under the allegations of the information, involves an element of skill it cannot, under the law, be deemed a lottery. The defendant further asserts that, before any game can...